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LOAN NO. C-1483
Prepared by Xxxxxx X. Xxxxx, Esq.
OPEN END FEE AND LEASEHOLD
MORTGAGE
THIS MORTGAGE SECURES FUTURE ADVANCES
This indenture, made the 18th day of September Nineteen Ninety
Seven (1997) Between XXXX CENTERS LIMITED PARTNERSHIP, A DELAWARE
LIMITED PARTNERSHIP(hereinafter called the Mortgagor/s) of the
one part, and FIRSTRUST SAVINGS BANK, a Pennsylvania Mutual
Savings Bank Chartered under the Pennsylvania Banking Code of
1965, (hereinafter called the Mortgagee) of the other part:
Whereas, the said Mortgagor/s in and by a certain obligation
or writing obligatory under his/her/its/their hand/s and seal/s
duly executed, bearing even date herewith, stand/s held and
firmly bound unto the said Mortgagee in the sum of up to
ELEVEN MILLION AND 00/100 DOLLARS ($11,000,000.00) legal tender
of the United States of America, conditioned for the payment to
the above-named Mortgagee, at its office in the City of
Philadelphia, its certain Attorney, Successors or Assigns, of the
just sum of FIVE MILLION FIVE HUNDRED THOUSAND AND 00/100
($5,500,000.00) legal tender aforesaid, with interest and premium
thereon at the rate specified in aforesaid obligation in monthly
installments of not less than SEE RIDER, the first installment to
be paid on the first day of the first month from the date
thereof, and the remaining installments monthly thereafter on the
first day of each month until the loan, additional future
advances, interest and other charges herein covenanted to be paid
are paid in full. SEE RIDER FOR PREPAYMENT PRIVILEGE.
And also conditioned for the payment unto the Mortgagee, in
addition to, and concurrently with, such monthly installments of
principal, interest and premium of the following sums:
Mortgagor will pay monthly installments of taxes as provided
in the Commitment between Mortgagor and Mortgagee.
All monthly installments of principal, interest and premium,
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and all payments mentioned in the preceding paragraph shall be
added together and the aggregate amount thereof shall be paid by
the Mortgagor/s each month in a single payment to be allocated by
the Mortgagee to the following items in the order set forth:
(1) Interest and premium on the said debt, which if not paid
during the current month shall be added to the balance
of the principal debt.
(11) Amortization of the principal of the debt represented by
said obligation.
(111) Taxes, water and sewer rents, fire and other hazard and
life insurance premiums. Interest will not be earned on
money held in escrow.
Any deficiency in the amount of any such aggregate monthly
payment shall constitute an event of default thereunder and under
this mortgage.
In the event that any payment shall become overdue for a
period of ten days, the Mortgagor/s agree/s to pay an additional
charge to defray the expenses incident to the handling of
delinquent accounts, equivalent to an additional one-tenth of
seven cent (.007) per month, or any fraction thereof, on the
unpaid outstanding balance of the loan, for the period of the
delinquency, said additional charge, however, not to exceed seven
per cent (.07) per month of the monthly payment, and to be added
to the principal debt.
It Is Agreed That the Mortgagee may pay said Taxes, water
and sewer rents, insurance premiums, claims, liens, or charges,
on behalf of the Mortgagor/s, whether previously paid by
Mortgagor/s to Mortgagee or not, and Mortgagee may cause any
repairs it deems necessary to be made to said premises and pay
for same, and it may make future advances for any reason to
Mortgagor/s or their heirs, executors, administrators,
successors: or grantee/s, at the request of the owner/s of said
premises at the time of the said advances, provided however that
at no time may the total balance due by the Mortgagor/s hereunder
whether the same represents, in whole or in part, the initial
advance or any future advance or advances exceed the sum of
ELEVEN MILLION AND 00/100 Dollars ($11,000,000.00): and, to the
extent permitted by law, in the event of taxation of the debt
represented by said Obligation of this Mortgage, or of the
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Mortgagee by reason of its ownership thereof, by any public
authority, the Mortgagor/s shall pay such taxes or compensate the
Mortgagee to the extent of its payment thereof, not less than
thirty days before that payment is due, and upon the failure of
the Mortgagor/s to do so, the Mortgagee may pay the said taxes,
advancing the amount thereof for the Mortgagor/s; and any sum or
sums so advanced shall be added to the principal debt and shall
bear interest at the maximum contract rate, from the date of
payment and shall be secured by this mortgage: and after any such
advances are made, all payments whatsoever to the Mortgagee, by
the Mortgagor/s shall be applied exclusively first to interest on
said advances and then to the principal thereof until the same is
paid in full and no such advances shall be construed as a waiver
of the right of the Mortgagee to enter judgement on said
obligation or to foreclose upon his Mortgage because of any
default. It is also agreed that, if any sum or sums of money
shall become payable under the aforesaid policies of insurance or
by virtue of any condemnation or taking of the mortgaged premises
for public use, the Mortgagee shall have the option to receive
and apply the same on account of the obligation of the
Mortgagor/s, or to release the same or any part thereof, for the
purpose of rebuilding or repairing the damaged premises, or for
other purposes, or release same to the Mortgagor without thereby
waiving or impairing the obligation of the Mortgagor/s, or the
lien of this mortgage securing the same. The Mortgagor hereby
expressly assigns and transfers unto the Mortgagee all sums of
money payable under such insurance claims or condemnation
proceedings, and does hereby irrevocably nominate, constitute and
appoint the Mortgagee to act for the Mortgagor as a true and
lawful attorney with full power to settle or compromise and
collect such claims, and to demand, receive and receipt for all
monies becoming payable under such claims, and to assign all
policies to any assignee of this Mortgage or to the purchaser at
a foreclosure sale.
Now This Indenture Witnesseth, That the said Mortgagor/s, as
well for and in consideration of the aforesaid debt or principal
sum of FIVE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($5,500,000.00), and for the better securing the payment of the
same, with interest, unto the said Mortgagee, its Successors and
Assigns, in discharge of the further sum of One Dollar unto
him/her/it/them in hand well and truly paid by the said
Mortgagee, at and before the sealing and delivery hereof, the
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receipt whereof is hereby acknowledged, has/have granted,
bargained, sold, aliened, enfeoffed, released and confirmed, and
by these presents do/xx xxxxx, bargain, sell alien, enfeoff,
release and confirm unto the said Mortgagee, its Successors and
Assigns:
SEE EXHIBIT "A" ATTACHED HERETO.
Together with all and singular the buildings, streets,
alleys, passages, ways, water, water-courses, rights, liberties,
privileges, improvements, hereditaments, and appurtenances
whatsoever, thereunto belonging, or in anywise appertaining, and
the reversions and remainders, rents, issues and profits thereof;
and also together with all heating, plumbing, cooking and
lighting fixtures and equipment, screens, awnings and shades, oil
furnaces, burners, radiators, cooling or air conditioning units
or systems, all machinery, compressors, elevators, and motors, of
every description, now or hereafter attached to or used in
connection with the real estate or the operation of the plant,
business or dwelling in the real estate hereinabove described.
The Mortgagor/s, hereby assign/s and transfer/s unto the
Mortgagee any and all rents issuing from the premises herein
described, and authorize/s it, or its agent, at any time there is
any default in the payment of the obligation secured hereby, or
in the performance of any obligation or condition contained
herein, or in the bond accompanying this mortgage, by force or
otherwise, without any liability for so doing, to enter into,
take possession of, rent, repair and operate said premises, and,
after deducting all costs of collection and administration, to
apply the balance of the rents received on account of the
obligation of the Mortgagor/s. It is hereby further agreed that
Mortgagee shall have the right to enter in and upon the premises
mortgaged hereby at any reasonable hour for the purpose of
inspecting the order, condition and repair of the building or
buildings erected thereon. If the Mortgagee enters into
possession, as provided herein, the Mortgagor/s specifically
authorize/s the Mortgagee to rent the premises under such terms
and conditions as it deems advisable including the right to have
the term extend beyond the date the mortgage is satisfied.
To Have and To Hold the said lot or piece of ground with the
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buildings and improvements thereon erected, hereditaments and
premises hereby granted, or mentioned and intended so to be with
the appurtenances, unto the said Mortgagee, its Successors and
Assigns, to and for the only proper use and behoof of the said
Mortgagee, its Successors and Assigns forever, UNDER and SUBJECT
as aforesaid.
It is agreed that, in the event the premises covered by this
mortgage, or any part thereof, shall be condemned and taken for
public use under the power of eminent domain, the Mortgagee shall
have the right to demand that all damages awarded for the taking
of or damage to said premises shall be paid to the Mortgagee, up
to the amount then unpaid on this mortgage, plus prepayment
charges as hereinbefore set forth, and may be applied upon the
payment or payments last payable hereon.
Provided Always, nevertheless, that if the said Mortgagor/s
do/es and shall well and truly pay, or cause to be paid, unto the
said Mortgagee, the aforesaid debt or principal sum and interest
thereon, and the aforesaid taxes, water and sewer rents and
insurance premiums, in installments, and shall produce said
receipts, on the days, at the times and in the amounts
hereinbefore mentioned and appointed for payment of the same, and
shall keep the building or buildings herein mentioned insured and
repaired as aforesaid, without any fraud or further delay, and
without any deduction, defalcation or abatement to be made of
anything herein mentioned to be paid or done, and if no new
building shall be erected or improvements added to as aforesaid,
without the prior written consent of the Mortgagee, and no
execution process shall be issued or lien or encumbrance placed
against the premises mortgaged hereby and no sale or transfer of
title or ownership of the stock of the corporation holding title
thereof be made without the written consent of the Mortgagee as
aforesaid, and if Mortgagor/s or their successors in title to the
mortgaged premises do not fail to furnish to Mortgagee or any
assignee of Mortgage, proposed by Mortgagee, a Declaration of No
Set-Off within ten days after written request for such instrument
is made then and from thenceforth, as well this present
Indenture, and the estate hereby granted, as the said recited
obligation shall cease, determine and become void, anything
hereinbefore contained to the contrary notwithstanding.
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Provided, however, and as it is further agreed in the
obligation of the Mortgagor/s, that it shall and may be lawful
for the Mortgagee, when and as soon as the principal debt or sum
hereby secured shall become due and payable as aforesaid, or if
at any time defaults shall be made in the payment of any monthly
installment of interest, principal, taxes, water and sewer rents
or insurance premiums for the space of one month after any
payment thereof shall fall due, or in the production to the
Mortgagee of receipts for the payment of taxes, water and sewer
rents and all other claims or charges assessed or levied or filed
against the mortgaged premises during the preceding two months,
or in the keeping of all buildings now or hereafter erected on
said premises and all equipment owned by Mortgagor and attached
to or used in connection with the same insured with insurers
approved by the Mortgagee against loss or damage by fire with
extended coverage and against war damage or other hazard for the
benefit of the Mortgagee, in such amounts as my be required from
time to time by the Mortgagee, or in the keeping and maintaining
of said building or buildings in such good order and repair as
may be required from time to time by the Mortgagee, or if a new
building shall be erected, or an improvement be added to the said
premises without the prior written consent of the Mortgagee, or
if any execution process shall be issued or any lien or
incumbrance placed or suffered to be placed against the said
mortgaged premises, or if there be a transfer of title to the
said premises other than by operation of law without the written
consent of the Mortgagee, or if Mortgagor/s or their successors
in title to the mortgaged premises fail to furnish to Mortgagee
or any assignee of Mortgage, proposed by Mortgagee, a Declaration
of No Set-Off within ten days after written request for such
instrument is made, or if there be a default in any other term or
condition of the said obligation or of this mortgage, or if the
Mortgagee by reason of a default be required to refer the
obligation to an attorney for collection or for the filing of a
claim in Bankruptcy, to xxx out forthwith a writ or writs of
Xxxxx Facias upon this Indenture of Mortgage, or to issue its
complaint in action of mortgage foreclosure, and to proceed
thereon to judgement and execution for the recovery of the whole
of said principal debt, or so much thereof as shall then remain
unpaid, and interest on all unpaid balances of principal at the
rate hereinabove set forth, together with all costs of suit, all
monies expended by the Mortgagee in the payment of taxes, water
and sewer rents, claims, liens, or charges and in effecting
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insurance or repair and in making future advances, and interest
on said expenditures at the rate set forth in Rider and a
reasonable attorney's fee of five per cent (5%) of the aggregate
amount thereof, but not less than one hundred dollars, for
collection, without further stay, any law, usage, or custom to
the contrary notwithstanding. It is agreed that the Mortgagor/s
waive/s exemption, inquisition, and condemnation, and waive/s and
relinquish/es all rights and benefits of any and all Acts passed
or to be passed exempting from Civil Process persons in the
Military or Naval Service of this State of the United States or
granting stay of execution, to the same, this waiver to be
effective only to the extent that the said Acts do not expressly
prohibit it.
It is agreed that any failure by Mortgagee to exercise any
rights, privileges or options shall not constitute a waiver of
its right to exercise the same at any other time.
It is hereby agreed that the word "Mortgagor/s" includes the
singular as well as the plural and the waivers, releases,
obligations, responsibilities and liabilities of said Mortgagor/s
shall extend to and be binding upon his, her, its, or their
heirs, executors, administrators, successors and assigns. It is
further agreed that the word "Mortgagee" and the rights, demands,
actions, grants, estates, claims, options and privileges granted
unto the Mortgagee shall extend to and include its Successors and
Assigns.
If this mortgage debt is, or is intended to be insured or
guaranteed by the Veterans Administration pursuant to the
provisions of the Servicemen's Readjustment Act of 1944, as
amended or supplemented, then the terms hereof are made subject
to and shall be modified by the Regulations of the Veterans
Administration as amended from time to time. If the Certificate
of Guaranty by that Administration is not delivered to the
Mortgagee within thirty days after requested, or if it is
impaired, lost or rendered ineffective for any reason, either
wholly or in part, at any time during the term hereof, the
balance of the principal debt and all unpaid interest thereon
shall, at the option of the Mortgagee, become due and payable
forthwith and the Mortgagee may proceed for the collection
thereof as elsewhere provided herein.
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In Witness Whereof, the said Mortgagor/s, to these presents
has/have hereunto caused to set its/his/her/their hand/s and
seal/s. Dated the day and year first above written.
RIDER IS ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE.
HAZARDOUS MATERIAL RIDER IS ATTACHED HERETO AND INCORPORATED
HEREIN BY REFERENCE.
XXXX CENTERS LIMITED PARTNERSHIP, A DELAWARE
LIMITED PARTNERSHIP
BY: XXXX CENTERS TRUST, A MARYLAND BUSINESS
TRUST, ITS GENERAL PARTNER
BY: /s/ Xxxxxx Xxxx
Xxxxxx Xxxx - Senior Vice President
ATTEST: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx - Asst. Secretary
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RIDER LOAN NO. C-1483
TO THAT CERTAIN MORTGAGE DATED THE 18TH DAY OF SEPTEMBER, 1997,
EXECUTED BY XXXX CENTERS LIMITED PARTNERSHIP, A DELAWARE LIMITED
PARTNERSHIP IN THE PRINCIPAL AMOUNT OF $5,500,000 FOR THE BENEFIT
OF FIRSTRUST SAVINGS BANK COVERING THE PREMISES KNOWN AS XXXX
PLAZA, ROUTE 11, EDWARDSVILLE BOROUGH, LUZERNE COUNTY, PA 18704
AS MORE FULLY DESCRIBED IN THE AFORESAID MORTGAGE. A DEFAULT
UNDER THE TERMS AND CONDITIONS OF THIS RIDER SHALL CONSTITUTE A
DEFAULT UNDER THE TERMS AND CONDITIONS OF THE MORTGAGE TO WHICH
IT IS ATTACHED.
1. Amount of Loan: $5,500,000.00.
2. Interest Rate: It is understood and agreed that interest
shall be earned on this obligation at a variable rate equal to
one (1%) percent per annum over the Firstrust Savings Bank
Commercial Reference Rate.
The term "Firstrust Savings Bank Commercial Reference Rate" or
"Reference Rate" is hereby defined as the announced published or
posted prime rate of Mellon Bank, N.A. The Mortgagor
acknowledges and agrees that (i) such Reference Rate is a
floating annual rate of interest and is used by Mortgagee as a
reference base with respect to different interest rates charged
to Mortgagors; and (ii) Mortgagee's determination and designation
from time to time of the Reference Rate shall not in any way
preclude Mortgagee from making loans to other Mortgagors at a
rate which is higher or lower than or different from the
Reference Rate. Firstrust Savings Bank's Commercial Reference
Rate shall change automatically as of the opening of business on
the effective date of each change in the prime rate of Mellon
Bank N.A., which (unless otherwise designated) shall be the date
of which Mellon Bank, N.A. announces the change in its prime
rate. When Firstrust Savings Bank's Commercial Reference Rate
changes on a day other than the first day of a calendar month,
interest for the month in which such change or changes are made
shall be calculated on a per diem basis that month. Interest is
computed on the actual number of days elapsed that month.
Interest is computed on the actual number of days elapsed over
360 days simple interest basis, that is, by applying the ratio of
the annual interest rate over a year of 360 days, times the
outstanding principal balance, times the actual number of days
the principal balance is outstanding. Interest at such variable
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rates shall be calculated and billed in arrears on the first day
of each month for interest due to the last day of the prior
month. In the event Mortgagee shall cease to publish or post its
Reference Rate, Mortgagee shall determine another comparable
index in its sole opinion.
3. Loan Term: This obligation shall mature and the entire
amount advanced by Mortgagee will be due and payable on the date
which is eighteen (18) months from the date hereof.
4. Payments to Mortgagee:
a. Monthly Payments:
(i) Interest Payment: Monthly payments of interest as
calculated above shall commence on the first day of the second
month (interest in arrears) following the closing of the loan and
shall be due thereafter on the first day of each succeeding month
for the remaining loan term; and
(ii) Principal Payment: At such time as Redner's takes
possession of their store and begins paying rent, or beginning on
the first day of the thirteenth month, whichever occurs first,
then Mortgagor will pay $10,000 per month toward principal as
well as such interest provided above.
b. Exit Fee: Should Mortgagor fail to obtain financing of
the Property from Mortgagee pursuant to the provisions of
Paragraph #15b whether or not Mortgagee is arbitrary or
capricious in failing to make such loan, then Mortgagor shall pay
Mortgagee an exit fee equal to the greater of 1% of the Loan
Amount or $54,400 on the earlier of March 15, 1999 or the date of
prepayment of this Loan. The provisions hereof shall also apply
notwithstanding that Mortgagor may have repaid this Loan from
cash on hand and without the necessity of any financing.
5. Late Charge: Throughout the life of the loan, payment not
received by the fifteenth (15th) of the month shall be considered
in default from the beginning of the month and Firstrust shall be
entitled to collect a late charge of 7% of such overdue payment
to cover cost of collection.
6. Additional Interest Clause: Mortgagor agrees that on the
date of maturity or sooner acceleration of this loan, Mortgagee
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may, at its option, increase the interest rate to 1.5% per month
on the outstanding principal balance until this loan is repaid in
full.
7. Prepayment Privilege: The loan may be prepaid at any time
without penalty upon sixty (60) days prior written notice to
Mortgagee.
8. Financing Statements: Security Agreements and Financing
Statements covering all personal property on described premises
will be executed this date and terms thereof are included herein
by reference. The Mortgagor agrees to pay all costs of recording
the financing statements as well as any continuation filings
thereof.
9. Insurance: Mortgagor shall obtain and maintain insurance
coverage, satisfactory to Mortgagee, on the real estate and
personal property securing this loan. All insurance policies
shall be issued by carriers with a Best's Insurance Reports
policyholder's rating of A or better and a financial size
category of Class XII or better and shall include a standard
mortgagee clause (without contribution) in favor of and
acceptable to Mortgagee. The initial policies shall be prepaid
and delivered to Mortgagee prior to closing and all renewal
policies shall be deposited with Mortgagee as evidence of such
insurance. The policies shall provide for the following, and any
other coverage that Mortgagee may from time to time deem
necessary:
(i) Fire and Extended Hazard Coverage: Fire and extended
hazard coverage must be maintained by Mortgagor in a minimum
amount of not less than the loan amount. If the policy is
written on a CO-INSURANCE basis, the policy MUST contain an
AGREED AMOUNT ENDORSEMENT as evidence that the coverage is in an
amount sufficient to insure the full amount of the mortgage
indebtedness;
(ii) Public Liability Coverage: Public liability coverage
must be maintained by Mortgagor with limits of not less than
$1,000,000 for bodily injury or death to any one person, or for
any one accident or occurrence, and $500,000 for property damage;
(iii)Rent Loss or Business Interruption Coverage: Rent loss
or business interruption coverage must be maintained by Mortgagor
in a minimum amount of not less than the debt service
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payments for a minimum of twelve months;
(iv) Flood Hazard Coverage: Flood hazard overage must be
maintained by Mortgagor in a minimum amount of not less than the
loan amount, if the property is located in a federally identified
flood hazard area; and
(v) Boiler Insurance: If applicable, boiler and pressure
vessel (including pressure pipes), explosion insurance must be
maintained by Mortgagor in an amount at least equal to the
principal balance of Mortgagee's mortgage with deductible
provisions not to exceed $1,000.00, in respect to all boilers and
pressure vessels and pressure pipes which are or shall be
installed on the subject premises.
ALL INSURANCE POLICIES DELIVERED TO MORTGAGEE PURSUANT TO THIS
SUBPARAGRAPH MUST CONTAIN AN AGREEMENT BY THE INSURER(S) TO GIVE
THE MORTGAGEE TEN (10) BUSINESS DAYS PRIOR WRITTEN NOTICE OF ANY
MATERIAL CHANGE IN THE POLICIES AND/OR THE INTENTION OF THE
INSURER(S) TO CANCEL THE POLICIES.
10. Inspection of Premises: The Mortgagee or its
representative(s) shall have the right at any time to inspect the
physical condition of the mortgaged premises and the improvements
thereon.
11. Inspection of Books & Records: The Mortgagor will maintain
full and correct books and records showing in detail the earnings
and expenses of the mortgaged premises. Mortgagor will permit
the Mortgagee or its representative(s) to examine said books and
records and all supporting vouchers and data at any time and from
time to time, upon request by the Mortgagee, at the Mortgagor's
place of business.
12. Property Re-Appraisal: At Mortgagee's expense, Mortgagee
may order a re-appraisal of the property with prior notice to
Mortgagor. Mortgagor will provide current rent rolls, operating
statements, access to leases and inspection of the property for
the appraiser and their representatives.
13. Furnishment of Financial Statements by Both Mortgagor and
Guarantors: The Mortgagor shall furnish to the Mortgagee without
demand, within ninety (90) days of the closing of each calendar
year, annual balance sheets and profit and loss statements for
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the prior year. Such statements shall be in such detail as
Mortgagee shall reasonably require and, where appropriate, shall
contain cash flow projections as related to the payment of the
mortgage loan for the upcoming year. In addition to the yearly
statements, at any time and from time to time, Mortgagee may
request a statement from the Mortgagor showing in detail all such
earnings and expenses since the last such statement verified and
certified by the party as true and correct.
14. Prohibition Against Transfer of Ownership in the Premises
or the Sale of Any Stock or Any Partnership Interest: Mortgagor
agrees that in the event that Mortgagor, without the prior
written consent of Mortgagee, shall sell, convey, or alienate the
mortgage premises or any part thereof, or any interest therein,
whether by way of stock transfers or sales of partnership
interests, or Mortgagor or any partner shall be divested of his
title or any interest therein, in any manner or way, whether
voluntary or involuntary, the entire balance of the indebtedness
shall be or become immediately due and payable at the option of
the Mortgagee, as well as an acceleration charge equivalent to
the highest prepayment charge payable hereunder. Nothing herein
contained shall in any way limit Mortgagor's ability to issue
Operating Partnership Units in Mortgagor or the ability of
partners of Mortgagor to transfer Operating Partnership Units in
Mortgagor.
15. Prohibition Against Additional Financing:
(a) Mortgagor agrees that no additional financing of any
type shall be arranged by or for the Mortgagor with the effect of
further encumbering the subject property without the Mortgagee's
consent. In the event any lien or encumbrance is recorded
against the premises without Mortgagee's consent, Mortgagee may,
at its option, accelerate the debt.
(b) Mortgagor agrees to seek permanent mortgage financing
for the subject property from Mortgagee no earlier than February
1, 1998, at such rates and terms as may be mutually agreeable to
both parties. Notwithstanding the foregoing, Mortgagor hereby
agrees that Mortgagee is also granted a right of first refusal
with respect to any and all financings of the Premises at the
expiration of the Loan Term whether in the form of permanent end
loan financing or otherwise. Mortgagor acknowledges, however,
that Mortgagee is under no obligation to make any additional
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loans with respect to the project. Mortgagor herein confirms its
obligation to make payment of the Exit Fee provided in Paragraph
#4(b) above.
16. Management:
a. Responsible Management - Change of Control: Mortgagor
acknowledges that Mortgagee has been induced into entering into
this loan primarily upon Mortgagor's representation that
Mortgagor would offer professional management of the property
with the objective of maintaining and preserving the physical
property. Therefore, on the date hereof, Xxxx Centers Trust must
assume the responsibility of managing the premises in a
responsible manner so as to maximize cash flow while maintaining
the property. In the event of any change in management out of
the control of the Mortgagor, whether by reason of death,
resignation, protracted illness, change of ownership or of
employment or management policies, or for any other reason,
Mortgagor shall give prompt written notice thereof to Mortgagee,
and Mortgagor agrees that Mortgagor will thereafter continuously
maintain the centers consistent with good industry practice for
shopping centers comparable to the Premises.
b. Good Industry Practice: Notwithstanding anything to
the contrary heretofore stated, Mortgagor agrees to manage the
premises consistent with good industry practice and as such shall
use its best efforts to:
(i) Screen all rental applicants in accordance with
good management practices;
(ii) Fully lease the building with responsible tenants;
(iii)Properly collect the rents therefrom;
(iv) Take prompt action on delinquent tenants;
(v) Promptly pay operating expenses when due;
(vi) Maintain the exterior and interior appearances of
the premises; and
(vii)Repair and replace work and damaged property in an
expeditious manner.
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c. Physical Inspection: Mortgagor further agrees that
Mortgagee may at any time cause a physical inspection of the
premises to be made by an appraiser or real estate manager chosen
by Mortgagee so as to determine the nature and estimated cost of
the maintenance required for the premises and which has not been
performed.
d. Failure to Manage - Default: In the event that
Mortgagor shall fail to operate the premises in a manner
consistent with Paragraph 16(b) above, then such failure shall
constitute a default under the terms of the mortgage except that
Mortgagor shall be given thirty (30) days after notice and demand
by Mortgagee to revise its management practices.
e. Failure to Maintain - Default: In the event that
Mortgagor shall fail to perform such maintenance to be required
within thirty (30) days after notice and demand by Mortgagee that
Mortgagor restore or repair said buildings, improvements,
fixtures, or articles of personal property, as specified in such
notice and demand, then such failure shall constitute a default
under the terms of the mortgage.
17. Mortgagee Not Partner: Nothing herein contained shall
constitute Mortgagee a Partner or Joint Venturer with Mortgagor.
18. Future Advance Clause: It is understood and agreed by and
between the parties of the first and second parts that the
consideration for the Mortgage is present and future advances of
funds to the Mortgagors, parties of the first part, by the
Mortgagee, party of the second part, in accordance with the terms
and conditions of a Construction and/or Development Loan
Agreement executed by and between the parties concurrently
herewith and it is understood and agreed by and between the
parties of the first and second parts hereto that the within
Mortgage is to secure future advance of funds for the
construction of a 52,825 square foot one-story super market to be
leased by Redner's and to complete miscellaneous improvements to
the balance of Xxxx Plaza which is located on Xxxxx #00,
Xxxxxxxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, XX the lien of which
advances shall relate back to the date of the within Mortgage.
19. Notice and Grace Period: Mortgagor is granted a one time
only fifteen (15) day advance written notice of monetary defaults
and a thirty (30) day advance written notice of non-monetary
16
default with an extended cure right for any non-monetary default
that cannot be cured within thirty (30) days.
20. Restoration. If the cost of restoring the damage to the
Mortgaged Property, as determined by Mortgagee, does not exceed
the amount of the Loan allocable to such Mortgaged Property, and
if Mortgagor is not then in default under this Mortgage or the
Loan Documents, mortgagee shall agree to permit such insurance
proceeds to be used to reimburse Mortgagor for the cost of
rebuilding the Improvements in accordance with all applicable
laws. Mortgagor agrees to promptly commence the rebuilding of
the Improvements in a manner as to be of at least equal value and
quality and substantially the same character as the Improvements
were prior to such damage or destruction, and Mortgagor shall
diligently complete such rebuilding as promptly as possible.
Such proceeds shall be made available, from time to time, upon
Mortgagee being furnished with satisfactory evidence of the
estimated cost of completion thereof and with such architect's
certificates, waivers of lien, contractor's certifications and
other evidence of cost of payments as Mortgagee may reasonably
require and upon Mortgagor being otherwise in compliance with the
provisions of the Loan Documents. If the estimated cost of the
work exceeds ten (10%) percent of the original principal amount
of the Note, Mortgagee shall also be furnished for its approval
all plans and specifications and all construction contracts for
such rebuilding prior to commencement of the rebuilding or
restoration. All payments made prior to final completion of the
work shall be subject to customary conditions for disbursing
construction loans as determined by Mortgagee. The undisbursed
balance of insurance proceeds shall at all times be sufficient to
pay for the cost of completion of the Improvements free and clear
of liens and if such proceeds are insufficient, Mortgagor shall
deposit the amount of such deficiency with Mortgagee prior to the
disbursement of any insurance proceeds.
21. Contest.
If Mortgagor is not in default under the Loan Documents,
Mortgagor may, in good faith and with reasonable diligence,
contest the validity or enforcement of any Law with respect to
the Mortgaged Property, provided that:
(i) such contest shall have the effect of preventing the
enforcement of any such Laws so contested and the levying of
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any fine on Mortgagor or against the Mortgaged property;
(ii) Mortgagor has notified Mortgagee in writing of the
intention of Mortgagor to contest the same within ten (10) days
after Mortgagor learns of the assertion that such Laws are being
violated;
(iii)such contest will prevent Mortgagor and Mortgagee from
being guilty of any crime by reason of non-compliance;
(iv) the failure to comply with such Laws does not prevent
the use and occupancy of the Mortgaged Property for its intended
use;
(v) Mortgagor has deposited with Mortgagee, at such place
as Mortgagee may from time to time in writing designate (and in
the absence of such appointment, then at the place of payment
designated in the Note), a sum of money or other cash equivalent
security acceptable to Mortgagee that is sufficient, in
Mortgagee's reasonable judgment, to pay in full the cost of
complying with such Laws and all penalties that might become due
thereof; and
(vi) Mortgagor prosecutes such contest with diligence and
keeps Mortgagee informed of the status of the contest.
XXXX CENTERS LIMITED PARTNERSHIP
a Delaware Limited Partnership
By: XXXX CENTERS TRUST,
a Maryland Business Trust,
its General Partner
By: /s/ Xxxxxx Xxxx
Senior Vice President and CFO
Attest: /s/ Xxxxxx X. Xxxxxxxxx
Assistant Secretary
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LOAN NO. C-1483
HAZARDOUS MATERIAL RIDER
Mortgagor shall keep and maintain the Mortgaged Property in
compliance with, and shall not cause or permit the Property to be
in violation of any federal, state or local laws, regulations,
guidelines, codes and ordinances relating to zoning, land use,
health, asbestos usage, industrial hygiene or environmental
conditions in, on, under or surrounding the Mortgaged Property
including, but not limited to, soil and ground water conditions.
Mortgagor represents and warrants that to the knowledge of
Mortgagor it has not used, generated, manufactured, stored,
released or disposed of in, on, under or surrounding the
Mortgaged Property or transport to or from the Mortgaged Property
any flammable explosives, radioactive materials, asbestos,
hazardous wastes, toxic substances or related materials,
including, without limitation, any substances defined as or
included in the definition of "asbestos" or "asbestos product",
"radon" or "radon gas", "hazardous substances", "hazardous
wastes", "hazardous materials", "wastes", "solid waste",
"contaminant", or "toxic substances" under any applicable
federal, state or local laws, regulations, guidelines, codes and
ordinances (collectively referred to hereinafter as "Hazardous
Materials") in any manner which violates any such law,
regulation, guideline, code or ordinance. Mortgagor represents
and warrants that, to the best of Mortgagor's knowledge, no
Hazardous Materials (except for asbestos; if any), have been used
in the construction of the Mortgaged Property, or generated,
stored, buried, handled, released or disposed of on, in, under or
surrounding the Mortgaged Property, or a location that will
adversely affect the Mortgaged Property in any manner which
violates any such law, regulation, guideline, code or ordinance,
and there are no facts, conditions or circumstances which, to the
Mortgagor's knowledge, could result in any investigation or
inquiry by any federal, state or local governmental authority
with regard to the foregoing. Mortgagor further warrants,
covenants and agrees not to allow the Mortgaged Property to be
used as a site for generating, manufacturing, storing, releasing
or disposing of Hazardous Materials (without the prior written
consent of Mortgagee and unless all required permits, bonds and
insurance have been obtained and are maintained). Mortgagor
further
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warrants, covenants and agrees to provide Mortgagee with prompt
written notice of (1) any proposed or actual investigation or
inquiry of Mortgagor or the Mortgaged Property with regard to
Hazardous Materials by any federal, state or local governmental
authority, (2) Mortgagor's obtaining knowledge of any discovery
of or release of any Hazardous Material in, on, under or from the
Mortgaged Property or any other site owned, occupied, or operated
by Mortgagor or by any person for whose conduct Mortgagor is
responsible or whose liability may result in a lien on the
Mortgaged Property, (3) Mortgagor's receipt of any notice to such
effect regarding (1) or (2) or notice to obtain a permit from any
federal, state or local governmental authority, and (4)
Mortgagor's obtaining knowledge of the incurring of any expense
or loss by such governmental authority in connection with the
assessment, containment or removal of any Hazardous Materials for
which expense or loss Mortgagor may be liable and for which
expense a lien may be imposed on the Mortgaged Property.
Mortgagor warrants, covenants and agrees at all times to comply
fully and in a timely manner with, and to cause all employees,
agents, contractors and subcontractors of Mortgagor to so comply
with, all applicable federal, state and local laws, regulations,
guidelines, codes and ordinances regarding any Hazardous
Materials. When requested, Mortgagor shall provide Mortgagee
access to or copies of all logs or other evidences of removal of
Hazardous Materials. Mortgagor warrants, covenants and agrees to
indemnify and hold Mortgagee Harmless from and against, and
immediately pay, any and all claims, losses, damages,
liabilities, fines, penalties, charges, administrative and
judicial proceedings and orders, judgements, remedial action
requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith (including but not
limited to expenses and attorney's fees and legal assistant's
fees including such fees and expenses in any appellate
proceeding), arising directly or indirectly, in whole or in part,
from any past, present or future failure of Mortgagor, its
employees, agents, contractors, subcontractors or other such
persons, to comply with any of such laws, regulations,
guidelines, codes or ordinances or the provisions of this
Paragraph.
In the event that Mortgagee incurs any losses, damages,
claims costs, fees, penalties, charges, assessments, taxes, fines
or expenses, including reasonable attorney's fees and legal
20
assistants' fees, in connection with cleaning up, removing,
disposal of or otherwise eliminating any Hazardous Materials from
the Mortgaged Property, such losses, damages, claims, costs,
fees, penalties, charges, assessments, taxes, fines or expenses,
including reasonable attorneys' fees and legal assistants' fees,
shall constitute remedial advances by Mortgagee as provided
hereinabove. The provisions of this paragraph will survive the
foreclosure of the Mortgage or any deed in lieu of foreclosure
delivered to Mortgagee by Mortgagor.
XXXX CENTERS LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP
BY: XXXX CENTERS TRUST, A MARYLAND
BUSINESS TRUST, ITS GENERAL PARTNER
BY: /s/ Xxxxxx Xxxx
Xxxxxx Xxxx, Senior Vice President
ATTEST: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Asst. Secretary
